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LASISI v. FRN (2022)

LASISI v. FRN

(2022)LCN/17019(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, July 01, 2022

CA/IB/244C/2021

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Abba Bello Mohammed Justice of the Court of Appeal

Between

YUSUF AYODEJI LASISI (A.K.A. Komolafe Kehinde Olatunbosun) APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

 

RATIO

THE POSITION OF LAW ON THE TIME TO DELIVERY JUDGEMENT OF THE COURT

Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) mandates every Court established under the Constitution to deliver its decision in writing not later than ninety days after conclusion of evidence and final addresses, and to furnish the parties with duly authenticated copies of the decision within seven days of its delivery. When read alone, this subsection of Section 294 of the Constitution would appear to have imposed a sacrosanct timeline of ninety days within which every Court must deliver its decision after final addresses, such that any decision not delivered within that timeline of ninety days becomes unconstitutional and therefore null and void. However, this is not exactly so, because, Subsection (5) of the same Section 294 goes further to provide as follows:
(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.
By the provisions of Subsections (1) and (5) of Section 294 of the Constitution therefore, a decision of Court delivered after the ninety days stipulated in subsection (1) will not ordinarily be a nullity until declared so by an appellate Court upon being satisfied by the party complaining that he has suffered miscarriage of justice, as provided in Subsection (5). In other words, the “shall” used in Section 294(1) is not regarded as mandatory but directory, recognizing that there may be imperative reasons that could prevent judgments from being delivered within the ninety days stipulated: ATUNGWU & ANOR v OCHEKWU (2013) LPELR-20935(SC), per Alagoa, JSC at pages 47–48, paras. C–C.
Thus, where there is a delay in the delivery of judgment, the onus is on the party complaining to satisfy the appellate Court or Court of review that he has as a result of the delay suffered miscarriage of justice. See: AKOMA & ANOR v OSENWOKWU & ORS (2014) LPELR-22885(SC), per Onnoghen, JSC (as he then was) at page 41, paras. B–D; and OWOYEMI v ADEKOYA & ORS (2003) LPELR-2858(SC), per Iguh, JSC at page 33 paras. A–E.
PER MOHAMMED, J.C.A.

THE POSITION OF LAW ON WHAT A PARTY COMPLAINING OF DELAY IN DELIVERY OF JUDGMENT BEYOND THE STIPULATED PERIOD NEEDS TO SHOW TO ESTABLISH MISCARRIAGE OF JUSTICE

As for whether the Appellant has been able to establish miscarriage of justice as a result of the delay, it is pertinent to state that the appellate Courts have considered the import of the constitutional time frame for delivery of judgments after the end of trial. In so doing, the Courts have highlighted what a party complaining of delay in delivery of judgment beyond the stipulated period need needs to show to establish miscarriage of justice. In ARIORI v ELEMO (1983) LPELR-552(SC), the Supreme Court, per Obaseki, JSC held at pages 45–46, paras. E–C, that:
“When evidence and addresses have been heard, the duty of the Judge to consider the evidence and addresses and deliver his judgment falls to be performed. If possible, the duty ought to be performed immediately upon the conclusion of counsel’s addresses if there were counsel in the case and if no counsel appeared upon the end of the testimony of the parties and their witnesses. The reasonable time for the consideration and delivery by the Court of the judgment depends only on the time an active, healthy and mentally alert Judge takes to read and consider the evidence and write his judgment with full and complete consciousness of all the impressions of witnesses at the trial. A period of time which dims or loses the memory of impressions of the witnesses is certainly too long and is unreasonable. Where a period of time dims or loses the memory of impressions of witnesses, it occasions a miscarriage of justice, contravenes the fair trial provision of our Constitution and vitiates the whole proceedings.”
Also, in DIBIAMAKA v OSAKWE (1989) LPELR-940(SC), the Apex Court, per Oputa, JSC, held as follows:
“Did the inordinate delay of 9 months between the close of the trial and the delivery of judgment render the judgment voidable, and could the Court, in the interest of Justice, avoid the judgment of the trial Court and that of the Court of Appeal which confirmed it?” Another question arises – And replace it with what? Justice in our Courts is justice according to law. And the law is that if inordinate delay between the end of the trial and the writing of the judgment apparently and obviously affected the trial Judge’s perception, appreciation and evaluation of the evidence so that it can be easily seen that he has lost the impressions made on him by the witnesses, then in such a case, there might be some fear of a possible miscarriage of justice and there, but only there, will an appellate Court intervene. The emphasis is not on the length of time simpliciter but on the effect it produced in the mind of the trial Judge.”
See also: AYINKE STORES LTD v ADEBOGUN (2008) LPELR-3831(CA), per Augie, JCA (as he then was) at pages 20–22, paras. E–A; ATUNGWU vs. OCHEKWU (supra); ACB LTD & ORS v AJUGWO (2011) LPELR-3637(CA), per Oseji, JCA (as he then was) at pages 34–36, paras. C–B; MOLEGBEMI & ORS v AJAYI & ORS (2011) LPELR-4501(CA), per Tsammani, JCA at pages 31–33, paras. A–E; and OLUSANYA v UBA PLC (2017) LPELR-42348(CA), per Ogakwu, JCA at pages 10–13, paras. C–D.
PER MOHAMMED, J.C.A.

WHETHER OR NOT EVIDENCE GIVEN BY AN INVESTIGATING POLICE OFFICER AS TO THE CONDUCT OF THEIR INVESTIGATION IS NOT HEARSAY EVIDENCE

It is settled law that evidence given by investigating police officers (IPOs) as to the conduct of their investigation is not hearsay evidence. The appellate Courts have severally restated this legal position. In KAMILA v STATE (2018) LPELR-43603(SC), the Supreme Court, per Sanusi, JSC held at pages 22–23, paras. D–A, thus:
“Again, on the quality of the testimony of PW3 who is the investigation police officer which the appellant’s learned counsel called for its discountenance because according to him it is hearsay evidence. Here, I do not share the appellant’s counsel’s view that the evidence of an IPO amounts to hearsay evidence because as an IPO he narrates to the Court the outcome of his investigation or enquiries or what he recovered or discovered in the course of his duty. He must have discovered or recovered some pieces of evidence vital to the commission of the crime which trial Courts normally consider in arriving at a just decision one way or the other. The lower Court was therefore right in refusing to discountenance such evidence adduced or given by PW3.
Also, in OLAOYE v THE STATE (2018) LPELR-43601(SC), the Apex Court, per Peter-Odili, JSC held at pages 42–43, paras. D–A, as follows:
“It has to be said that it is erroneous for the appellant to posit that the evidence of PW3 should be discountenanced being hearsay evidence. That submission is a misconception since PW3 is the investigating Police Officer who has to narrate to the Court what transpired in the course of his investigation. In this process of stating what he found out in carrying out his inquiries, would be pieces of evidence which with another witness would be considered hearsay but from him since the Court has to know the synopsis of his investigative journey, it is direct evidence.”
See also on this: OBOT v STATE (2019) LPELR-48172(CA), per Shuaibu, JCA at page 15, paras. C–F; and OBOT v STATE (2014) LPELR-23130(CA), per Ndukwe-Anyanwu, JCA, at page 36, paras. B-F. PER MOHAMMED, J.C.A.

THE POSITION OF LAW WHERE MORE THAN ONE PERSON IS ACCUSED OF JOINT COMMISSION OF A CRIME

In D.S.P.G NWANKWOALA & ORS v THE STATE (2006) LPELR-2112(SC), the Supreme Court, per Tabai, JSC, held at pages 19–20, paras. D–A, that:
“Where more than one person is accused of joint commission of a crime, it is enough to prove that they all participated in the crime. What each did in furtherance of the commission of the crime is immaterial. The mere fact of the common intention manifesting in the execution of the common object is enough to render each of the accused persons in the group guilty of the offence.
​See also: PATRICK IKEMSON & 7 ORS v THE STATE (1989) 3 NWLR (Pt. 110) 455 ADEKUNLE v STATE (1989) 5 NWLR (Pt. 123) 505; OGEDENGBE v THE STATE (2014) LPELR-23065(SC); OBIDIKE v STATE (2014) LPELR-22590(SC); and SANNI v THE STATE (2019) LPELR-48417(CA), per Bada, JCA at pages 22–24, para. E. PER MOHAMMED, J.C.A.

WHETHER OR NOT THE EVALUATION AND ASCRIPTION OF PROBATIVE VALUE TO EVIDENCE IS THE PRIMARY DUTY OF A TRIAL COURT

It is settled law that the evaluation and ascription of probative value to evidence is the primary duty of a trial Court: KELLY v STATE (2022) LPELR-57325(SC), per Ogunwumiju, JSC at page 18 paras. B–E;EDWIN v STATE (2019) LPELR-46896(SC), per Muhammad, JSC at page 28, paras. C–D; and FRN v IWEKA (2011) LPELR-9350(SC), per Galadima, JSC at page 59 paras. A–C. In the instant appeal, the Appellant has failed to show how the evaluation of the evidence by the trial Court is perverse and has not established any miscarriage of justice. Where, as in this case, the trial Court has done its primary duty of evaluating and ascribing probative value to the evidence led before it, an appellate Court which this Court is, cannot interfere with same: EDWIN v STATE (supra); OKEOWO v A.G. OF OGUN STATE (2010) LPELR-2442(SC), per Onnoghen, JSC (as he then was) at pages 6–7, para. E; BELLO v FRN (2018) LPELR-44465 (SC), per Bage, JSC at pages 13–17, para. A; and IGBI & ANOR v STATE (2000) LPELR-1444(SC), per Ayoola, JSC at pages 14–15, para. E.  PER MOHAMMED, J.C.A.

ABBA BELLO MOHAMMED, J.C.A. (Delivering the Leading Judgment): The Appellant was arraigned before the Federal High Court, Ibadan (the trial Court) on a five-count charge of conspiracy, obtaining by false pretence, forgery and uttering. After a full-blown trial, he was found guilty of the offences of conspiracy and obtaining by false pretence in counts 1, 2 and 3 while he was discharged of the offences of forgery and uttering in counts 4 and 5. The Appellant was sentenced to 13 years imprisonment. The judgment and the sentence are at pages 329 – 364 of the Record of Appeal.

Dissatisfied with his conviction and sentence, the Appellant has appealed to this Court vide Notice of Appeal filed on 16th July, 2021, which is at pages 365–374 of the Record of Appeal. The Record of Appeal was transmitted to this Court on the 10th of September, 2021. In furtherance of the appeal, the parties filed and exchanged their briefs of argument. The Appellant’s Brief of Argument filed on 29th September, 2021 was settled by Otunba M. Olayinka Bolanle, while the Respondent’s Brief of Argument settled by Festus Ojo Esq, which was filed on 18th May, 2022 was deemed properly filed on the 30th of May, 2022 along with the Appellant’s Reply Brief filed on 26th May, 2022.

From his 12 grounds of appeal, the Appellant distilled the following four issues for determination:
1. Whether the learned trial Judge of the Court below properly exercised jurisdiction in delivering the judgment of the Court below on 23rd June, 2021 and convicting and sentencing the Appellant on the said date when by the Records, the final Address in the matter were adopted on 26th February, 2021 and when the re-adoption ordered and effected on 23rd June, 2021 was a sham? (Ground 3 of the Notice of Appeal).
2. Whether the learned trial Judge was right in convicting the Appellant as charged in counts 1, 2 and 3 when evidence offered by the prosecution in proof of same are inherently either hearsay evidence or documentary evidence dumped on the Court by the prosecution? (Grounds 4, 6, 7 and 9 of the Notice of Appeal).
3. Whether on the state of evidence adduced by the prosecution, the learned trial judge correctly agreed with the prosecution in finding that statutory onus of proof of commission of the offences listed as Counts 1, 2 and 3 was discharged by the prosecution? (Ground 1, 5, 8, 10 and 11 of the Notice of Appeal).
4. Whether the learned trial Judge correctly took into account all relevant statutory and existing judicial considerations, in exercising his discretion in sentencing the Appellant, a first-time offender and father of infant children, to a thirteen years term of imprisonment? (Ground 2 of the Notice of Appeal).

On its part, the Respondent formulated the following three issues for determination:
(a). Whether the delay in delivery of judgment has occasioned any miscarriage of justice.
(b). Whether the learned Judge evaluated the evidence adduced in this case properly leading to the conviction of the Appellant on counts 1, 2 and 3 out of five counts charge.
(c). Whether the sentence imposed on the Appellant by the trial Court is excessive.

​I have considered the issues distilled by the parties. The Appellant’s issues 2 and 3 essentially relate to the weight of evidence. It appears to me if those two issues are considered as one, the parties will be at ad idem on three issues for the determination of the appeal as distilled by the Respondent. I am therefore of the view that this appeal can be effectively determined on the three issues formulated by the Respondent, albeit with slight modification, as follows:
1. Whether the delay in the delivery of judgment by the trial Court has occasioned miscarriage of justice as to render same invalid.
2. Whether having reference to the evidence adduced the trial Court was right in convicting the Appellant as charged in counts 1, 2 and 3 of the five counts charge.
3. Whether the sentence of thirteen years imprisonment imposed on the Appellant by the trial Court is excessive.

APPELLANT’S SUBMISSIONS ON THE ISSUES:
On his issue 1, learned Counsel for the Appellant cited Section 294(1) of the 1999 Constitution which mandates that Courts established under the Constitution shall deliver judgment in writing not later than ninety (90) days after the conclusion of evidence and final addresses. He pointed out that the defence called his last witness, DW3, on 18th November, 2020, (pages 311–321 of the record of Appeal), after which the lower Court adjourned the matter to 21st January, 2021 for adoption of final written addresses. But the final addresses were eventually adopted on 26th February, 2021 (pp. 323–324) and the case was adjourned to the 30th April, 2021 for judgment, but the Judiciary Staff Union of Nigeria (JUSUN) went on strike as a result of which the judgment could not be delivered. On 23rd June, 2021, the learned trial Judge called for a fresh re-adoption and proceeded to deliver the judgment immediately after the re-adoption was done. Counsel argued that the judgment was delivered three months and twenty-eight days after final address was adopted on 26th February, 2021. Citing the case of ODI v OSAFILE (1985) 1 NWLR (Pt. 1) 17, per Obaseki, JSC, he argued that the judgment which was delivered after the expiration of the three months stipulated is unconstitutional.

Learned Counsel also referred to the Supreme Court decision in the case of IFEZUE v MBADUGHA (1984) 1 SCNLR 427, as well as Section 294 (5) of the 1999 Constitution, and submitted that the Appellant had demonstrated miscarriage of justice in the grounds of appeal. He referred the Court to ground 3 of the Notice of Appeal and submitted that the failure of the lower Court to comply with the provisions of Section 294 (1) of the 1999 Constitution by the lower Court occasioned a miscarriage of justice.

Counsel further argued that apart from the fact that the trial Judge did not properly appreciate the basis for a re-adoption, it is glaring that a miscarriage of justice would be presumed to have occurred where a party is able to show that the trial Judge’s perception and/or appreciation of the case presented by the parties and/or witnesses is suspect. He relied on AYINKE STORES LTD. v ADEBOGUN (2013) ALL FWLR (Pt. 682) 1797 at 1811; and ARIORI v ELEMO (1983) All NLR 1; (1983) 1 SCNLR 1, and urged the Court to resolve issue 1 in favour of the Appellant and hold that the judgment of the trial Court is invalidated by reason of non-compliance with Section 294 (1) of the 1999 Constitution.

Arguing issues 2 and 3 together, learned Counsel for the Appellant submitted that a holistic consideration of the whole evidence led by the prosecution will show that the trial Judge ought to have found that the prosecution did not discharge the evidential burden placed on it to prove the ingredients of the offences charged against the Appellant beyond reasonable doubt. He submitted that failure of proof happens either where the prosecution failed to prove the essential ingredients of offence beyond reasonable doubt or where the evidence of the prosecution witnesses has been so discredited and rendered unreliable under cross-examination that it had created reasonable doubt in the case of the prosecution. He cited NJOKU v THE STATE (2013) 2 NWLR (Pt. 1339) 548. He added that the onus of proving the presence of both the actus reus and mens rea lies on the prosecution. He referred to GARBA v THE STATE (2011) 14 NWLR (Pt. 1266) 98; and ABEKE v THE STATE (2007) 9 NWLR (Pt. 1040) 411.

​Learned Counsel submitted that the offences for which the Appellant was convicted and sentenced were: Conspiracy to obtain the sum of N10,500,000.00 by false pretence (Count 1); Obtaining N10,000,000 by false pretence (Count 2); and Obtaining N500,000 by false pretence (Count 3). He contended that the ingredients of obtaining by false pretence in counts 2 and 3 have been espoused in a number of cases He cited KINGSLEY ADIJEH v COP, NASARAWA STATE (2018) LPELR – 44563 (CA), per Sankey, JCA; and ONWUDIWE v FRN (2006) All FWLR (Pt. 319) 774 at 812–813. He argued that the issue of identity was not resolved by the Court below. He pointed out that PW2 had testified that bank draft of N8,000,000.00 (Eight million Naira) was issued in the name of “Mr. John Komolafe”, the second draft of N2,000,000.00 (Two million Naira) was issued in the name of “Komolafe John” and the other payment of N500,000 was allegedly the agency fee paid to one “Mr. Adisa”. He argued that there was no proof before the lower Court and not even the slightest attempt of proving that all these names refer to one and only one person. He urged this Court to find that this is a serious infraction that goes to the root of proving the alleged crimes in counts 1, 2 and 3. He also submitted that the evidence of the complainant who claimed to have issued the bank drafts in question did not match up with the documentary evidence of photocopies of the purported drafts presented by the prosecution in Court.

​Counsel referred to the case of Dr. E.J. ESENOWO v Dr. I. UKPONG & ANOR. (1999) LPELR–1166, where the Court held that the name “Dr. J.E. Esenowo” is not the same person as Dr. E.J. Esenowo. He similarly cited the case of REV. VICTOR MUKORO v FRN (2015) LPELR–24439(CA), where the Court of Appeal held that the responsibility of the Prosecution to establish the element of fraudulent intention of the Defendant and that this mental element must be proved beyond reasonable doubt.

Learned Counsel pointed out that of the 5 witnesses called by the Prosecution, 2 were police officers who were part of the investigating team. He submitted that the bulk of the evidence of PW1 and PW3 is hearsay evidence. He added that PW1 who tendered Exhibits A – L was not the maker of those documents. He added that except for Exhibits A and L whose makers were called as witnesses Exhibits B and all other Exhibits were tendered through persons who did not make them. He cited DAVID OGORO & ORS v 7UP BOTTLING COMPANY PLC (2015) LPELR–24424(CA) per Barka, JCA;FLASH FIXED ODDS LTD v AKATUGBA (2001) 9 NWLR (Pt.717) 46 at 63, per Niki Tobi, JSC, where it was held that although there could be situations where a document will be tendered by a non-maker, the Court should not attach any probative value to it.

Learned Counsel also argued that the nature and quality of investigation done by the EFCC in this case is below average and urged this Court to make a finding of fact to this effect and hold that the learned trial Judge ought to have so found on the basis of the quality of available evidence. He added that it is quite glaring that PW1 (Yabge Sylvanus), the IPO, through whom the prosecution tendered Exhibits A–L, came to a conclusion of alleged forgery merely on the basis of the letter written by a person who he had never seen nor interviewed. As for the evidence of PW3 (Ebika Alokpa), the second investigating police officer, his evidence clearly shows that he was in Court to give evidence on the content of the letter received by this investigating team from Access Bank on the one hand and Skye Bank on the other hand. (Pp. 288–289). He added that PW3 was merely led to identify the letters written and the replies obtained from the Access Bank, Guaranty Trust Bank and Skye Bank, as well as a copy of the petition that prompted their investigation. The prosecution did not attempt to lead PW3 into the dates the alleged funds were lodged and which accounts were credited with the value of the drafts claimed to have been issued by the Petitioner/Complainant, Mr. Adebisi Adesola. He argued that the bank statements and letters were merely dumped on the lower Court for the Court to do a private examination of the documents to arrive at the date the funds were lodged and into which of the bank statements the funds were lodged.

He submitted that it is not within the jurisdiction of the Court to help in doing the Counsel’s work. He relied on SPASCO VEHICLE & PLAN HIRER CO. LTD. v ALRAINE (1995) 9 SCNJ 288 at 304; IVIENAGBOR v BAZUAYE (1999) 6 SCNJ 236; and UGOCHUKWU v CO-OPERATIVE BANK (1996) 7 SCNJ 22. He added that it is the duty of the Counsel who wants the Court to rely on a particular document tendered as an Exhibit to lead a witness on the document to activate the Court into proper action on the document. He cited ACCESS BANK PLC v MRS CECILIA AJAYI (2018) LPELR-43813(CA), and submitted that the prosecution had failed to demonstrate the relevance of the statement of account tendered and as well as link the Appellant to the offence of obtaining N1,000,000.00 and N500,000.00 under false pretence.

The Appellant further submitted that in respect to the offence of conspiracy in count 1, there was no prima facie case made out by the Prosecution, as the lack of evidence in respect of the other counts also affects this count. He explained that the dumping of all the documentary evidence on the Court by the Prosecution without proper demonstration had naturally affected the proof of the ingredients in respect of this count.

Learned Counsel pointed out that conspiracy is the meeting of two or more minds to carry out an unlawful act or a lawful act by an unlawful means. He cited THANNI SHODIYA v THE STATE (1992) 3 NWLR (Pt. 230) 457. He submitted that the mere fact that the Appellant happened to work in the same office does not ipso facto give rise to the offence of conspiracy. He added that the law is that where the Prosecution fails to prove the particulars of an offence stated in a charge, the Defendant should not be convicted of the offence but should be discharged and acquitted.

​Learned Counsel for the Appellant submitted that the Appellant had raised the issue of mistaken identity right from the investigation stage and had requested to be confronted with the Petitioner on one hand and the Referee who had allegedly referred him to the bank, but rather than acceding to this request, he was slapped and asked whether he wanted to teach the investigators their job. He further submitted that the Referee who should have been called to give credible evidence linking him to the offences was not called as a witness. He contended that issue of identification becomes necessary where an offender was not arrested at the scene of a crime. He argued that an identification parade ought to be conducted to ascertain the identity of the offender. He cited the cases of ADEYEMI v THE STATE (2011) 5 NWLR (Pt. 1239) 1; and IKEMSON v THE STATE (1989) 3 NWLR (Pt. 110) 455, which stated the instances when identification parade will be necessary. He argued that the only place the alleged victim (Mr. Adebisi Adesola) identified the Defendant was in the course of his evidence-in-chief before the lower Court and that was when he pointed at the Defendant in the dock.

Learned Counsel pointed out that in ANI v THE STATE (2009) ALL FWLR (Pt. 482) 1084, the Supreme Court had admonished that identification of a Defendant is a serious exercise in the administration of criminal justice which creates the link between the Defendant and the offence alleged against him, and that the law Courts should not be involved in speculations that a complainant might have or must have identified the person who committed the offence where there is no such evidence before the trial Court. He added that in OROK v THE STATE (2009) ALL FWLR (Pt. 532) 1732 CA, the Court had held that where a Defendant was not arrested at a crime scene, the evidence of identification would require caution by the trial Judge before acting on. Further citing AYO v THE STATE (2015) 16 NWLR (Pt. 1486) 531, he urged this Court to hold that it is not the business of the lower Court to provide missing links which the prosecution ought to have supplied.

Learned Counsel pointed out that this Court had held in ELDER OKON AARON UDORO & ORS v THE GOVERNOR OF AKWA IBOM STATE & ORS (2008) LPELR–4094 (CA), that whenever inadmissible evidence is tendered, it is the duty of the opposite party to object to its admissibility, and even if not objected to, the Court must reject such evidence in criminal cases. He submitted that if this Court expunges the photographs in Exhibits G2 and G3 (which are the bank forms) which were objected to at the lower Court, there will be nothing on the record to support the case of the Prosecution in their bid to link the Appellant to the commission of the offence. Relying on ALAKE v THE STATE (1992) 9 NWLR (Pt. 265) 260 SC, he urged the Court to hold that the evidence of identity was not established beyond reasonable doubt. Further relying on KALU v THE STATE (1988) 4 NWLR (Pt. 90) 503; and HARUNA v THE STATE (1990) 10 SCNJ 5, he submitted that the failure to prove the ingredient of the offence implies that Prosecution has failed to prove the guilt of the Appellant beyond reasonable doubt.

On his issue 4, which was distilled from Ground 2 of the Notice of Appeal, the learned Counsel for the Appellant submitted that in imposing a sentence of thirteen years imprisonment on the Appellant, the learned trial Judge took into consideration deterrence alone and did not consider the fact that the Appellant is a first-time offender and a father of 2 infant children. He further argued that the learned trial Judge did not exhaust all the considerations contained in the sentencing statutes or in the principles and practice of sentencing before exercising his judicial discretion. He referred to page 327 of the Record.

Relying on KENNETH CLARK v THE STATE (1986) 4 NWLR (Pt. 35) 381, he submitted that an appellate Court can appropriately intervene by exercising jurisdiction to reduce sentences imposed on the Appellant as it is manifestly excessive having regard to the circumstances of the case and the sentencing principles which was not taken into account by the trial Judge. He cited Section 401(2)(a) – (g) of the ADMINISTRATION OF CRIMINAL JUSTICE ACT, 2015, which prescribes some of the factors that should be considered by the Court in imposing custodial sentence. He contended that the use of the word “and” after items in Paragraph (f) before (g) is to show that all the considerations in (a) – (g) are to be conjunctively considered by a trial Judge in exercising discretion to impose sentence.

​Learned Counsel submitted that one of the fundamental principles of sentencing which Courts often consider is “reformation”. He argued that the Appellant was denied the opportunity of reformation by being slammed with a sentence of thirteen years imprisonment. He urged the Court to intervene and take into consideration that the Appellant has a young wife, 2 infant children and aged parents, and that it will also be in the best interest of the larger society. He cited CHRISTOPHER FAGBEMI v THE STATE (1978) 6 FC 4; SUNDAY IMOISILI v A-G BENDEL (1986) 2 C.A. (Pt. 1) 370; ENGR. KWALE v THE STATE (2003) FWLR (Pt. 152) 1594 at 1531, 1534, to the effect that Courts should be slower on imposing terms of imprisonment even where same is provided by statute, particularly in the case of a first offender.

RESPONDENT’S SUBMISSIONS ON THE ISSUES:
Arguing issue 1, learned Counsel for the Respondent conceded that the failure by the trial Court to deliver judgment within three months started his argument by stating that he agrees the general statement of law after adoption of final addresses is a contravention of Section 294 (1) of the 1999 Constitution (as amended). However, he argued that the failure does not ipso facto lead to the judgment being set aside except where a miscarriage of justice has been suffered. Citing and relying on DIBIAMAKA v OSAKWE (1989) 3 NWLR (Pt. 107) 105 at 114, para. G, he contended that it is not the delay between the conclusion of a trial and the delivery of judgment simpliciter that occasions miscarriage of justice, the emphasis being not on the length of the time, but on the effect the delay has produced on the mind of the trial Judge. He argued that the Appellant is duty bound to demonstrate to the satisfaction of this Court that a miscarriage of justice was occasioned and he has failed to discharge that duty.

Learned Counsel cited the cases of EMEKA EZE v THE STATE (2018) LPELR–44887; REYNOLDS CONSTRUCTION CO. LTD. v ODIGIE (2018) LPELR-44776; and ATUNGWU v OCHEKWU (2014) 229 LRCN 192 at 197, where Section 294 of the 1999 Constitution, especially Subsection (5) was interpreted. He submitted that a party complaining of miscarriage of justice in a case must of necessity provide relevant facts and circumstances to establish same. He added that the mere assertion of miscarriage of justice does not necessarily prove the existence of same.

​Learned Counsel pointed out that the Appellant had contended in paragraph 3.05 of the Appellant’s Brief that judgment of the lower Court was delivered three months and twenty-eight days after the adoption of the final address done on 26th February 2021 and that the judgment was not delivered within time because of the Judicial Staff Union of Nigeria (JUSUN) nationwide strike, as a result of which the trial Judge called for a fresh re-adoption and proceeded to deliver judgment immediately thereafter. Counsel submitted that even based on the argument of the Appellant, this Court ought to take judicial notice of the JUSUN strike as an intervening factor which frustrated the Court from delivering the judgment within the 3 months stipulated. He argued that the Appellant has failed to establish that miscarriage of justice had occurred by reason of the 28 days delay. He urged the Court to so hold and resolve this issue in favour of the Respondent.

​On issue 2, learned Counsel for the Respondent referred to the extra-judicial statement of the Appellant in Exhibit 1 at page 29, lines 12-30 of the Record of Appeal, wherein he stated how he met other accomplices/fraudsters who are at large. He pointed out that the Appellant had stated that he got to know Adisa Adeleye John through Alhaji Kola who is a business agent and that they told him there was a land business at Onireke GRA and asked him to act as the son of the owner of the land, who is Komolafe Kehinde Olatunbosun. That as soon as he (the Appellant) agreed, he proceeded to open Skye Bank Account in the name of Komolafe Kehinde Olatunbosun, after which he was taken to Adisa’s office where he met the buyer Mr. Adebisi. That Mr. Adebisi issued two bank drafts (GTB – N2,000,000 and intercontinental N6,000,000). That the Appellant was told to state that his father was bedridden in the hospital and that he was acting on his behalf as his son. That the Appellant said they also showed him a purported Certificate of Occupancy which they claimed was the title to the land and this convinced Mr. Adebisi to pay. Learned Counsel further pointed out that the Appellant had narrated that the N6,000,000 and N2,000,000 were paid into his (the Appellant’s) Bank account which he opened in the name of Kehinde Komolafe, while another N2,000,000 was paid into Adisa Adeleye’s account making a total of N10,000.000, and N500,000 was paid in cash.

Learned Counsel submitted that the offence of conspiracy to obtain the sum of N10,500,000 was established as in count 1, and obtaining N10,000,000 by false pretense in count 2, as well obtaining N500,000 by false pretense in count 3. He added that although, the Appellant was discharged and acquitted by the trial Court on count 4 and count 5, (forgery and uttering of document), PW1 and PW3 who were both investigating police officers with the Respondent carried out the investigation activities at pages 192–226 and 285-289 of the Record of Appeal. Counsel contended that it has been held that the duty of the Court is to evaluate evidence and appraise the facts and that it is not the business of an appellate Court to substitute its own views for the views of the trial Court. He cited and relied on the cases of EBOADE v ATOMESIN (1997) 8 NWLR (Pt. 506) 490 at 502; AJUMOBI OGUNDULU & ORS v CHIEF E. O. PHILLIPS & ORS (1973) 1 NMLR 267 at 272; NZEKWU v NZEKWU (1989) 2 NWLR (Pt. 104) 373.

​It was also the submission of learned Counsel for the Respondent that the trial Court could not have arrived at any other conclusion than that the prosecution had proved its case against the Appellant beyond reasonable doubt based on the evidence led by the Prosecution and even by the Appellant. He pointed out that in Exhibit 1 at page 29 of the Record, the Appellant admitted to the roles he played in the fraud. Counsel contended that facts admitted need no further proof and cited AGBAKOBA v SSS (1994) 8 NWLR (Pt. 209) 255 at 298. He added that notwithstanding the admission of the Appellant, the evidence of PW1 and PW3 had confirmed Exhibit 1. He urged the Court to discountenance the arguments of the Appellant on issues 2 and 3 and hold that the Respondent had proved its case against the Appellant.

Arguing his third and final issue, learned Counsel for the Respondent submitted that sentencing is at the discretion of the trial Judge. He added that the Court of Appeal had held in EGBUO v CHUKWU (1998) 10 NWLR (Pt. 570) 499 at 512, that a proper exercise of discretion should be done according to law and not humour, and that it is not to be arbitrary, vague or fanciful but legal and regular. He argued that an appellate Court is not at liberty to substitute its own discretion for the discretion already exercised by the trial Judge, unless it reaches the conclusion that the discretion exercised was wrongful and no sufficient weight was given to considerations However, the Court in CHARLES OSENTON v JOHNSON (1994) A.C. 130 at 138, stated that if the Appellate Court reaches a clear conclusion that the exercise of discretion was wrongful in that no sufficient weight has been given to relevant considerations.

Learned Counsel referred the Court to Section 1(3) of the Advanced Fee Fraud and other fraud Related Offences Act, 2006 wherein punishment of not more than 20 years and not less than 7 years without option of fine was provided for offences committed under Subsections (1) and (2) of that Section. He posited that the trial Judge had the discretion to sentence the Appellant to 20 years but instead sentenced him to 13 years and also backdated the sentencing to 9th September, 2014 instead of the 23rd day of June, 2021 when he was convicted. Counsel added that Section 11(1) of the Advanced Fee Fraud has also made provision for restitution to be ordered by a trial Judge to the victim of the Appellant’s infraction, and the trial Judge tempered justice with mercy by asking the Appellant to pay the sum of N5,000,000 instead of N8,000,000 as restitution to the victim. Counsel urged the Court to discountenance the arguments of the Appellant and dismiss this appeal.

APPELLANT’S REPLY:
In Reply, the learned Counsel for the Appellant urged the Court to discountenance the issues raised by the Respondent since the Respondent has not cross-appealed. Relying on the cases of GOVERNMENT OF AKWA IBOM STATE v POLARIS BANK LTD (2019) 8 NWLR (Pt. 1674) 347; OSAZUWA V ISIBOR (2004) 3 NWLR (Pt. 859) 16; KUUSU v UDOM (1990) 1 NWLR (Pt. 127) 421, he submitted that both the issues and the arguments thereupon are irregular and incompetent as the issues formulated were not attached to the grounds in the Notice of Appeal. He contended that it is trite that where a Respondent has not cross-appealed or filed a Respondent’s Notice he cannot raise issues outside those formulated or framed by the Appellant. He relied on NZEKWU v NZEKWU (1989) 1 NWLR (Pt. 99) 514; ALADETOYINBO v ADEWUNMI (1990) 6 NWLR (Pt. 154) 98.

In the event that the Court will consider the Respondent’s issues, learned Counsel for the Appellant submitted in reply to the Respondent’s issue 2, that the Respondent’s arguments on issue 2 is not based on evidence that was demonstrated at the trial. He argued that the Respondent dumped evidence on the trial Court without proper demonstration, by virtue of the holding of the Court in SPASCO VEHICLE & PLANT HIRER CO. LTD v ALRAINE (1995) 9 SCNJ 288 at 304; IVIENAGBOR v BAZUAYE (1999) 6 SCNJ 236; and UGOCHUKWU v CO-OPERATIVE BANK (1996) 7 SCNJ 2; and ACCESS BANK PLC v MRS CECILIA AJAYI (2018) LPELR–43813(CA). He submitted that the Respondent failed to lead his witnesses to demonstrate the evidence at the trial Court and that the learned Counsel for the Respondent was only trying to give evidence now in the guise of writing his brief.

With respect to issue 3 formulated and argued by the Respondent, Counsel argued that the Respondent failed to appreciate the power of the Court of Appeal in criminal appeals. He referred to the case of HUSSAINI GARBA v THE STATE (2021) LPELR–55468(CA), where this Court held that by Section 19(2) of the Court of Appeal Act, the Court of Appeal has the power to allow an appeal against conviction, quash conviction, direct a judgment and verdict of acquittal to be entered or order that the Appellant be retried by a Court of competent jurisdiction. He added that where a Respondent desires that the Court of Appeal should come to the same decision as the Court below on a particular point other than the reason advanced by the Court below, he should file a cross-appeal or a Respondent’s notice. He pointed out that the Respondent had done none of these. He posited that the Respondent is not allowed to bring an argument outside of the issues raised by the Appellant.

RESOLUTION OF ISSUE 1:  
Whether the delay in the delivery of judgment by the trial Court has occasioned miscarriage of justice as to render same invalid.

Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) mandates every Court established under the Constitution to deliver its decision in writing not later than ninety days after conclusion of evidence and final addresses, and to furnish the parties with duly authenticated copies of the decision within seven days of its delivery. When read alone, this subsection of Section 294 of the Constitution would appear to have imposed a sacrosanct timeline of ninety days within which every Court must deliver its decision after final addresses, such that any decision not delivered within that timeline of ninety days becomes unconstitutional and therefore null and void. However, this is not exactly so, because, Subsection (5) of the same Section 294 goes further to provide as follows:
(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.
By the provisions of Subsections (1) and (5) of Section 294 of the Constitution therefore, a decision of Court delivered after the ninety days stipulated in subsection (1) will not ordinarily be a nullity until declared so by an appellate Court upon being satisfied by the party complaining that he has suffered miscarriage of justice, as provided in Subsection (5). In other words, the “shall” used in Section 294(1) is not regarded as mandatory but directory, recognizing that there may be imperative reasons that could prevent judgments from being delivered within the ninety days stipulated: ATUNGWU & ANOR v OCHEKWU (2013) LPELR-20935(SC), per Alagoa, JSC at pages 47–48, paras. C–C.
Thus, where there is a delay in the delivery of judgment, the onus is on the party complaining to satisfy the appellate Court or Court of review that he has as a result of the delay suffered miscarriage of justice. See: AKOMA & ANOR v OSENWOKWU & ORS (2014) LPELR-22885(SC), per Onnoghen, JSC (as he then was) at page 41, paras. B–D; and OWOYEMI v ADEKOYA & ORS (2003) LPELR-2858(SC), per Iguh, JSC at page 33 paras. A–E.

As borne by pages 323–324 of the Record of Appeal, the final addresses of the parties were adopted on the 26th of February, 2021 after which the trial Court adjourned the matter to 30th April, 2021 for judgment. But the judgment of the trial Court was only delivered on the 23rd of June, 2021 immediately after the learned trial Judge got the parties to re-adopt their final addresses. Thus, there is no controversy over the fact that from the 26th of February, 2021 when the final addresses of the parties were adopted, the judgment of the trial Court was delivered after the ninety days stipulated in Section 294(1) of the 1999 Constitution.

A trial Court has the power to invite the parties to re-adopt their final written addresses only before the expiry of the ninety days within which it must deliver judgment, especially where new issues have arisen to which it requires the parties’ submissions before delivery of judgment. But the practice where after the expiry of ninety days a trial Court invites parties to readopt final addresses before delivering its judgment, as was done by the learned trial Judge at page 333 of the Record of Appeal, has no place either in the Constitution, or in our statutory laws or rules of procedure. In fact, such a practice neither obviates the fact that the judgment is delivered after the ninety days stipulated, nor adds any value to the final addresses being readopted by the parties. Thus, after the expiry of the ninety days within it must deliver its judgment, a trial Court can only proceed to deliver its judgment and then comply with the reporting requirement stipulated in subsection (6) of Section 294, by reporting same to the Chairman, National Judicial Council. It is then left to an appellate Court before which a complaint against the late delivery of the judgment is lodged to determine whether a miscarriage of justice had been occasioned as a result of the delay in the delivery of the judgment.

In the instant appeal, even the Appellant has admitted in paragraph 3.05 of his Brief of Argument that the judgment delivered on 23rd June, 2021 was not delivered by the trial Court within the ninety days from 26th of February, 2021 when the final addresses were adopted, because of the Judiciary Staff Union of Nigeria nationwide strike. This fact was also reflected by the learned trial Judge in his judgment at page 333 of the Record. Hence, there was a frustrating incident that made it impossible for the trial Court to deliver its judgment within the constitutionally stipulated time frame.

​As for whether the Appellant has been able to establish miscarriage of justice as a result of the delay, it is pertinent to state that the appellate Courts have considered the import of the constitutional time frame for delivery of judgments after the end of trial. In so doing, the Courts have highlighted what a party complaining of delay in delivery of judgment beyond the stipulated period need needs to show to establish miscarriage of justice. In ARIORI v ELEMO (1983) LPELR-552(SC), the Supreme Court, per Obaseki, JSC held at pages 45–46, paras. E–C, that:
“When evidence and addresses have been heard, the duty of the Judge to consider the evidence and addresses and deliver his judgment falls to be performed. If possible, the duty ought to be performed immediately upon the conclusion of counsel’s addresses if there were counsel in the case and if no counsel appeared upon the end of the testimony of the parties and their witnesses. The reasonable time for the consideration and delivery by the Court of the judgment depends only on the time an active, healthy and mentally alert Judge takes to read and consider the evidence and write his judgment with full and complete consciousness of all the impressions of witnesses at the trial. A period of time which dims or loses the memory of impressions of the witnesses is certainly too long and is unreasonable. Where a period of time dims or loses the memory of impressions of witnesses, it occasions a miscarriage of justice, contravenes the fair trial provision of our Constitution and vitiates the whole proceedings.”
Also, in DIBIAMAKA v OSAKWE (1989) LPELR-940(SC), the Apex Court, per Oputa, JSC, held as follows:
“Did the inordinate delay of 9 months between the close of the trial and the delivery of judgment render the judgment voidable, and could the Court, in the interest of Justice, avoid the judgment of the trial Court and that of the Court of Appeal which confirmed it?” Another question arises – And replace it with what? Justice in our Courts is justice according to law. And the law is that if inordinate delay between the end of the trial and the writing of the judgment apparently and obviously affected the trial Judge’s perception, appreciation and evaluation of the evidence so that it can be easily seen that he has lost the impressions made on him by the witnesses, then in such a case, there might be some fear of a possible miscarriage of justice and there, but only there, will an appellate Court intervene. The emphasis is not on the length of time simpliciter but on the effect it produced in the mind of the trial Judge.”
See also: AYINKE STORES LTD v ADEBOGUN (2008) LPELR-3831(CA), per Augie, JCA (as he then was) at pages 20–22, paras. E–A; ATUNGWU vs. OCHEKWU (supra); ACB LTD & ORS v AJUGWO (2011) LPELR-3637(CA), per Oseji, JCA (as he then was) at pages 34–36, paras. C–B; MOLEGBEMI & ORS v AJAYI & ORS (2011) LPELR-4501(CA), per Tsammani, JCA at pages 31–33, paras. A–E; and OLUSANYA v UBA PLC (2017) LPELR-42348(CA), per Ogakwu, JCA at pages 10–13, paras. C–D.

In the present appeal, the Appellant had referred this Court to page 344 lines 8–17 of the Record of Appeal in an attempt to establish miscarriage of justice, and argued that the learned trial Judge had failed to properly appreciate the issues made by the defence as a preliminary point in the Defendant’s Reply on Point of Law at pages 171–177 of the Record. But I have examined the said pages 171–177, as well as page 344 of the Record of Appeal. I fail to see how the learned trial Judge’s statement on page 344 portrays a lack of appreciation of the preliminary issue raised in the Defendant’s reply on point of law. Indeed, the statement of the learned trial Judge merely reflects a summation of the preliminary point so raised in paragraphs 1.03–1.06 of the Defendant’s Reply. I have not seen how that summation has occasioned any miscarriage of justice to the Appellant. I therefore, have no hesitation in discountenancing the Appellant’s argument in that regard. In consequence, I hereby resolve this issue against the Appellant and hold that the Appellant has failed to show how the delay in the delivery of judgment by the trial Court has occasioned any miscarriage of justice to him as to render the judgment invalid.

RESOLUTION OF ISSUE 2:
Whether having reference to the evidence adduced the trial Court was right in convicting the Appellant as charged in counts 1, 2 and 3 of the five counts charge.

It is trite that where an Appellant complains against the evaluation of evidence by the trial Court, he has a duty to show the part of the evidence not evaluated or was improperly evaluated by the trial Court and how that failure affected his case. See: OYEDELE v STATE (2019) LPELR-47576(SC), per Kekere-Ekun, JSC at page 26, paras. A–F; KIWO v STATE (2020) LPELR-53900(SC), per Muhammad, JSC at page 30, paras. D-F; and ANACHE & ANOR v BAKO & ORS (2019) LPELR-55316(CA), per Nimpar, JCA at pages 22–25, paras. E–A.

At paragraph 4.03 of the Appellant’s Brief of Argument, it was merely contended that the essential ingredients of the offences for which the Appellant was convicted in counts 1, 2 and 3 were either not proved beyond reasonable doubt or the evidence of the Prosecution witnesses was so discredited and rendered unreliable under cross-examination. The learned Counsel for the Appellant then proceeded to argue about mens rea and actus reus. He then argued that the learned trial Judge ought not to have found the ingredients of the offences established because the person alleged to have been impersonated, Komolafe Kehinde Olatunbosun was not called by the Prosecution. Counsel for the Appellant argued that it is only Komolafe Kehinde Olatunbosun that can authoritatively tell the Court that he exists and that the Defendant was an impostor. Counsel also pointed to the Bank Forms in Exhibits G, G2 and G3 and argued that the Defendant was not the one in the photographs in those Exhibits as the person in those exhibits was bearded, and that the IPO was not there when the bank account opening processes were done. He tried to argue over the identification of the Defendant.

It appears however, that the learned Counsel for the Appellant has obscured the testimony of PW2 which the trial Court, in finding the Appellant guilty of the offence of conspiracy in count 1, had thoroughly evaluated at pages 347–348 of the Record. Therein, the learned trial Judge stated as follows:
“The evidence of PW2 is very crucial to this offence charged. In his oral testimony, he prefaced that he knows the Defendant, Yusuf Ayodeji Lasisi, as Mr. Mike Komolafe, whom he got to meet through Mr. Adisa Adeleye John (Adisa). This Adisa was (sic) contacted PW2 and introduced himself as the assigned agent for the piece of land he had interest. This Adisa initiated a telephone call, via which PW2 spoke with the supposed owner of the land, Mr. Komolafe, whom Adisa said was hospitalized at London. The PW2 testified that this conversation propelled him to negotiate for the land and settle for the sum of N8,000,000.00 with Adisa. He told Court that he went along with Dan Umoh and asked Adisa to meet them at Intercontinantal Bank (now Access Bank), where he raised two bank drafts for N6,000,000.00 and N2,000,000.00 in the name of John Komolafe. He testified, the trio proceeded to Adisa’s office at Suite 8, Sandex, Iwo road, where the drafts were exchanged with the Original Certificate of Occupancy, Original copy of Power of Attorney claimed to be issued by Mr. John Komolafe, which authorized the Adisa to sell the land. He said he paid N500,000.00 to Adisa as agent fees. He testified that as he was about to leave Adisa’s office, the Defendant came into the office and introduced himself to him as Mr. Mike Komolafe, the son of Mr. John Komolafe. And the Defendant insisted that he was not satisfied with agreed sum, because the negotiated amount was inadequate and that PW2 wants to take advantage of his father’s illness, thus the Defendant asked for an additional N2,000,000.00. The PW2 testified that he went back to his bank (Guaranty Trust Bank) to raise another draft in the name of Mr. John Komolafe for the sum of N2,000,000.00. The PW2 testified that, that was how he met the Defendant for the first time. However, he told Court that when he proceeded to maintain the land, one Admiral Komolafe and met informed his gardener that he is the owner of the said land. He told the Court that his attempt to meet Adisa over the issue proved abortive.”

After reviewing PW2’s testimony in chief, the learned trial Judge then proceeded to observe that:
“I do find the learned Defence Counsel completely failed to put any questions to PW2 to devalue this salient evidence in the course of cross-examination, but rather learned Defence counsel chose to put questions as to PW2’s level of intelligence and the negligence on his part not to have conducted a proper search before making payments for the land.

The learned trial Judge then concluded at page 350 when he held that:
“The evidence of great import at this stage, is the meeting of the minds of Adisa and the Defendant to perpetuate a criminal act to defraud by obtaining by false pretences from PW2, by their words and deeds. I do believe the prosecution evidence because it was left potent by the Defence, in favour of the Prosecution… I hereby find the Prosecution has proved the Count 1 offence against the Defendant before (sic) reasonable doubt. I find the Defendant guilty of the Count 1 offence as charged.”

From the foregoing, it is clearly evident that the trial Court’s finding of the Appellant guilty of conspiracy in count 1 was supported by duly evaluated evidence adduced before that Court.

As for the argument of the Appellant that the evidence of the Prosecution witnesses in proof of the offence of obtaining by false pretences in counts 2 and 3 of the charge was hearsay evidence, the printed record of appeal shows that the Appellant had raised the same argument at trial and the learned trial Judge had in his judgment fully addressed and resolved that argument against the Appellant when he held at pages 351 – 352 as follows:
“The Count 2 offence charged against the Defendant borders on with intent to defraud, the Defendant obtained the sum of N10,000,000 by false pretences from PW2. I will save time and adopt the narrative of PW2 testimony as of importance to the Prosecution’s case and damaging to the defence. The learned Defence counsel attacked the evidence of PW1, PW3, PW4 and PW5 as hearsay evidence which should be rendered inadmissible. Firstly, the PW1 and PW3 are officers of the EFCC who investigated this case. The PW1 testified as to how a petition was received on 26th day of July 2013 from PW2 at the EFCC. He said his investigation stretched to Skye Bank where he discovered the beneficiary of the drafts raised by PW2 had the account name Komolafe Kehinde Olatunbosun. And upon receipt of the account opening package of the said beneficiary, the referee in the person of Adenugba Abayomi was traced and he discovered the said Komolafe K. Olatunbosun was not the actual owner of the account but the Defendant, whose photograph and other documents like driver’s licence was found attached to the account opening package. He said the Defendant was apprehended through the corporation (sic) of the referee. Exhibits G1–G7, that is “re-investigation activities”, Managers Cheque No. 00010281 dated November 29th, 2013 along with all its attachments, C9A – C9F and the certificate of identification were tendered through this witness.
The Defendant made two statements dated 5th and 6th day of June 2014. The 2nd statement recorded 6th day of June, 2014 was admitted after a conduct of trial within trial and same marked Exhibit I. The PW1 testified that his investigation conducted at the Ministry of Lands, Ibadan revealed that the Certificate of Occupancy presented by the Defendant and accomplices was a fake. The response from Ministry of Lands, Ibadan is Exhibit L. He said his investigation revealed the real owner of the land, one Rear Admiral Komolafe.
Learned Counsel for Defence’s contention to the evidence of PW1 stems from the admission elicited from PW4, that he never met the PW4 in person, but that he made a statement through the letterhead of the Ministry of Lands, being Exhibit L. He categorized as hearsay evidence. The PW3 fully corroborated the PW1 testimony. The Petition (Exhibit M) was tendered through this witness. He also admitted he did not visit the Ministry of Lands personally.
I do find after a careful evaluation of the evidence of PW1 and PW3, that all they laid before Court was all they did and garnered in the course of their investigation. Same cannot be termed hearsay evidence.”

It is pertinent to observe that PW1 and PW3 whose evidence the Appellant is referring as hearsay, are officers of the Economic and Financial Crimes Commission (EFCC) who investigated the case against the Appellant and they gave evidence of all they obtained in the course of their investigations.

It is settled law that evidence given by investigating police officers (IPOs) as to the conduct of their investigation is not hearsay evidence. The appellate Courts have severally restated this legal position. In KAMILA v STATE (2018) LPELR-43603(SC), the Supreme Court, per Sanusi, JSC held at pages 22–23, paras. D–A, thus:
“Again, on the quality of the testimony of PW3 who is the investigation police officer which the appellant’s learned counsel called for its discountenance because according to him it is hearsay evidence. Here, I do not share the appellant’s counsel’s view that the evidence of an IPO amounts to hearsay evidence because as an IPO he narrates to the Court the outcome of his investigation or enquiries or what he recovered or discovered in the course of his duty. He must have discovered or recovered some pieces of evidence vital to the commission of the crime which trial Courts normally consider in arriving at a just decision one way or the other. The lower Court was therefore right in refusing to discountenance such evidence adduced or given by PW3.
Also, in OLAOYE v THE STATE (2018) LPELR-43601(SC), the Apex Court, per Peter-Odili, JSC held at pages 42–43, paras. D–A, as follows:
“It has to be said that it is erroneous for the appellant to posit that the evidence of PW3 should be discountenanced being hearsay evidence. That submission is a misconception since PW3 is the investigating Police Officer who has to narrate to the Court what transpired in the course of his investigation. In this process of stating what he found out in carrying out his inquiries, would be pieces of evidence which with another witness would be considered hearsay but from him since the Court has to know the synopsis of his investigative journey, it is direct evidence.”
See also on this: OBOT v STATE (2019) LPELR-48172(CA), per Shuaibu, JCA at page 15, paras. C–F; and OBOT v STATE (2014) LPELR-23130(CA), per Ndukwe-Anyanwu, JCA, at page 36, paras. B-F. Therefore, contrary to the argument of the Appellant, the evidence of PW1 and PW3, the investigating officers of the EFCC, as to their investigation of the case against the Appellant is not hearsay evidence and the trial Court was right to have relied on same.

It is also pertinent to state that in convicting the Appellant for the offences in counts 1, 2 and 3, the trial Court had in addition to the oral testimonies of witnesses, also relied on the documentary evidence tendered by the Respondent as Exhibits A–M, including the Appellant’s extra-judicial statement which was admitted as “Exhibit I” after a trial-within-trial. These were thoroughly evaluated by the learned trial Judge especially from pages 351–359 of the Record, debunking the Appellant’s argument that the said documentary exhibits are documentary hearsay evidence or that they were dumped upon the Court. The learned trial Judge had found that the said documentary exhibits were duly linked by the oral evidence of the prosecution witnesses. In particular, he had found at page 354 that Exhibit L, the letter from Ministry of Lands, Ibadan Oyo State which revealed that the Certificate of Occupancy presented by the Appellant and his accomplices was a fake, tallies with the testimony of PW1 and PW3, while Exhibits G1–G7, the Bank Account opening forms, to which was affixed the Appellant’s passport photograph, tally with the evidence of PW5 (see page 354 of the Record).

It is also noteworthy that the trial Court evaluated Exhibit I, the Appellant’s extra-judicial statement, and even quoted the relevant part at page 357 of the Record before holding at page 358 that “No doubt this is a confessional statement to the offence contained in Count 2.”

In respect of count 3, the learned trial Judge had similarly referred to the evidence of PW2 that he gave Adisa the sum of N500,000 before the Appellant came into Adisa’s Office and posed as the son of Mr. John Komolafe and demanded an increase of the purchase price of the land. As rightly observed by the learned trial Judge at page 360 of the Record of Appeal, the law is that once a criminal act committed by two or more persons acting in concert in furtherance of a common intention is established, each and every one of them is liable for the consequence of the criminal act and it does not matter who did what among them. In
In D.S.P.G NWANKWOALA & ORS v THE STATE (2006) LPELR-2112(SC), the Supreme Court, per Tabai, JSC, held at pages 19–20, paras. D–A, that:
“Where more than one person is accused of joint commission of a crime, it is enough to prove that they all participated in the crime. What each did in furtherance of the commission of the crime is immaterial. The mere fact of the common intention manifesting in the execution of the common object is enough to render each of the accused persons in the group guilty of the offence.
​See also: PATRICK IKEMSON & 7 ORS v THE STATE (1989) 3 NWLR (Pt. 110) 455 ADEKUNLE v STATE (1989) 5 NWLR (Pt. 123) 505; OGEDENGBE v THE STATE (2014) LPELR-23065(SC); OBIDIKE v STATE (2014) LPELR-22590(SC); and SANNI v THE STATE (2019) LPELR-48417(CA), per Bada, JCA at pages 22–24, para. E.

It is settled law that the evaluation and ascription of probative value to evidence is the primary duty of a trial Court: KELLY v STATE (2022) LPELR-57325(SC), per Ogunwumiju, JSC at page 18 paras. B–E;EDWIN v STATE (2019) LPELR-46896(SC), per Muhammad, JSC at page 28, paras. C–D; and FRN v IWEKA (2011) LPELR-9350(SC), per Galadima, JSC at page 59 paras. A–C. In the instant appeal, the Appellant has failed to show how the evaluation of the evidence by the trial Court is perverse and has not established any miscarriage of justice. Where, as in this case, the trial Court has done its primary duty of evaluating and ascribing probative value to the evidence led before it, an appellate Court which this Court is, cannot interfere with same: EDWIN v STATE (supra); OKEOWO v A.G. OF OGUN STATE (2010) LPELR-2442(SC), per Onnoghen, JSC (as he then was) at pages 6–7, para. E; BELLO v FRN (2018) LPELR-44465 (SC), per Bage, JSC at pages 13–17, para. A; and IGBI & ANOR v STATE (2000) LPELR-1444(SC), per Ayoola, JSC at pages 14–15, para. E. It is in consequence of the above, that I also resolve issue 2 against the Appellant.

RESOLUTION OF ISSUE 3:
Whether the sentence imposed on the Appellant by the trial Court is excessive.

Under this issue, the Appellant had essentially contended that in imposing a sentence of thirteen years imprisonment, the trial Court considered only deterrence at page 327 of the Record and failed to take into cognizance the principle of reformation especially as the Appellant was a first offender with a father and 2 infant children.

It is trite that sentencing upon conviction is at the discretion of the trial Court which conducted the trial of the case. However, there are general principles which guide the appellate Courts in deciding whether or not to interfere with the sentence passed by the lower Court. These are:
1. An Appeal Court should not interfere with a sentence imposed by a trial Court merely because it would have passed a different sentence had it tried the case at first instance.
2. The facts of the particular case should be considered.
3. The appellate Court should review the sentence only when it is shown to be manifestly excessive or inadequate or based on wrong principles.
See: OMOKUWAJO v FRN (2013) LPELR-20184(SC), per Aka’ahs, JSC at page 59 paras. C–G; ADEYEYE & ANOR v STATE (1968) LPELR-25500(SC), per Ademola, JSC (as he then was) at pages 2–3, paras. A–A; and ADEKOYA v STATE (2014) LPELR-22933(CA), per Tsammani, JCA at pages 45–46, paras. B–A.

Section 1 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 under which the Appellant was tried and convicted for conspiracy and obtaining money under false pretence provides in subsection (3) of that section as follows:
“A person who commits an offence under Subsections (1) and (2) of this Section is liable on conviction to imprisonment for a term of not more than 20 years and not less than 7 years without option of a fine.”
From Section 1(3) of the Act quoted above, the law has provided a latitude of discretion for the learned trial Judge to, taking into consideration of the circumstance of the case, impose a sentence in between ranging from the minimum of 7 years to the maximum of 20 years. The record of proceedings of the trial Court at pages 326–328 of the Record of Appeal shows after delivery of his judgment convicting the Appellant on the 23rd of June, 2021, the learned trial Judge had, upon listening to the Appellant’s plea of mitigation, sentenced the Appellant to thirteen years imprisonment on each of the counts 1, 2 and 3 and ordered that the sentences shall run concurrently and backdated the commencement date to 9th September, 2014. Pursuant to Section 11(1) of the Act, the learned trial Judge also ordered the Appellant to make restitution to the Respondent, Mr. Adebisi Adesola Alade, in the sum of N5,000,000.00 (Five Million Naira), being half the sum of the amount defrauded.

It is therefore evident from the foregoing that, not only is the concurrent sentence of thirteen years imprisonment imposed by the trial Judge within the parameters provided by the enabling statute, its commencement was also backdated by seven years and the Appellant was ordered to make a restitution of N5 Million instead of the N8 Million traced to him. The Appellant had merely insinuated that the trial Court had failed to consider the principle of reformation, but has failed to establish same. Given the situation in which the learned trial Judge had backdated the commencement of the sentence with seven years and ordered restitution of an amount less than that defrauded, it can hardly be argued that the trial Court failed to take into cognizance the principles of sentencing in imposing sentence on the Appellant.

On the whole, the Appellant has failed to establish that the sentence imposed on him by the trial Court is manifestly excessive or based on wrong principles. Thus, this Court cannot interfere with the discretion exercised by the trial Court in imposing same: OMOKUWAJO v FRN (supra); ADEYEYE & ANOR v STATE (supra); and ADEKOYA v STATE (supra). This third and last issue is also resolved against the Appellant.

Having resolved all three issues in this appeal against the Appellant, the fate of this appeal is sealed. It is totally devoid of merit. Accordingly, I dismiss this appeal for lack of merit and affirm the conviction and sentence of the Appellant by the trial Court in its judgment delivered on 23rd June, 2021 in Suit. No. FHC/IB/4C/2016: YUSUF AYODEJI LASISI v FEDERAL GOVERNMENT OF NIGERIA.

​MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had the advantage of reading the draft of the judgment just delivered by my learned brother, Abba Bello Mohammed, JCA.

One of the Appellant’s complaints is that the trial Court delivered its judgment three months and twenty-eight days after the final addresses of the learned counsel for the parties. Counsel contended that the trial Court’s judgment was unconstitutional by virtue of the provisions of Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

My learned brother has already summarized the facts of this case to show that at the close of evidence, the learned counsel for the parties adopted their written addresses on 26/02/2021 and the trial Court reserved its judgment for 30/04/2021 but the judgment could not be delivered, because of an industrial action embarked upon by the Judiciary Staff. However, on 23/06/2021, upon the request of the trial Court, the learned counsel readopted their written addresses and the Court proceeded to deliver its judgment on the same date.

I think that the Appellant’s grouse, as explained above, has no legal nor logical foundation or justification. If one may ask: What injustice did the Appellant suffer as a result of the procedure adopted by the trial Court? Understandably, the Appellant has not been able to demonstrate any miscarriage of justice occasioned by the procedure adopted by the trial Court.

In any case, the law is quite settled that failure to comply with the provisions of Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) will not justify an annulment of a judgment, unless the party complaining is able to show that the failure resulted in a miscarriage of justice. See Obodo v. Olomo (1987) 3 NWLR (Pt. 59) 111; Eseigbe v. Agholor (1990) 7 NWLR (Pt. 161) 234; Veritas Insurance Co. Ltd. v. Citi Trust Investment Ltd. (1993) 3 NWLR (Pt. 281) 349; Cotecna International Ltd. v. Churchgate Nig. Ltd. (2010) 12 SC (Pt. Il) 140 and Alhaji Musa Umar v. Alhaji Tijanni Saleh Geidam (2019) 1 NWLR (Pt. 1652) 29.

The term “miscarriage of justice” was defined and explained by the Supreme Court, per Niki Tobi, JSC; in the case of Alhaji Raufu Gbadamosi v. Olaitan Dairo (2007) 3 NWLR (Pt. 1021) 282 at 306.
“Miscarriage of justice connotes decision or outcome of legal proceeding that is prejudicial or inconsistent with the substantial rights of the party, Miscarriage of justice means a reasonable probability of more favourable outcome of the case for the party alleging it. Miscarriage of justice is injustice done to the party alleging it. The burden of proof is on the party alleging that the justice has been miscarried.”

With particular reference to Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) it was held in the case of John Babani Elias v. Federal Republic of Nigeria (2021) 16 NWLR (Pt. 1800) 495 at 557 per Augie JSC; that:
“It is also settled that in deciding a miscarriage of justice, as a result of the delay between conclusion of trial and the delivery of a judgment, the emphasis is not on the length of time simpliciter but on the effect that it produced in the mind of a Judge. Thus, if the evaluation of evidence bears the mark of freshness and the findings of fact are supported by credible evidence, then the Court’s judgment will not be set aside, see Ojokolobo v. Alamu (1995) SCNJ 98, (1987) 3 NWLR (Pt. 61) 377”.

Since the Appellant has not shown that the alleged non-compliance, even if it is true, occasioned any miscarriage of justice, this complaint is not enough reason for the judgment of the trial Court to be disturbed or interfered with.

It is for the foregoing reasons and the fuller reasons advanced in the leading judgment that I also dismiss this appeal and affirm the judgment of the trial Court.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the benefit of reading in advance the draft judgment of my learned brother, ABBA BELLO MOHAMMED, JCA. Having carefully read same, I must say that His Lordship has painstakingly dealt with the salient issues canvassed for the parties especially the issue of interference by the Appellate Court with the sentence imposed on a party as held in OMOKUWAJO V. FRN (2013) LPELR-20184(SC). I agree with the reasoning and conclusion of my learned brother, and abide by the consequential orders contained therein.

Appearances:

Otunba M. Olayinka Bolanle For Appellant(s)

Festus Ojo, Esq. For Respondent(s)